2012 PLP 1243 (SCMR)

KHILJI ARIF HUSSAIN, J.

The petition has been filed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, for leave to appeal against the judgment dated 27-3-2012 passed by the Islamabad High Court, Islamabad whereby Civil Revision No.70 of 2011 filed by the petitioners was dismissed.

2. Brief facts to decide the petition are that respondent No.3 filed a suit before the Civil Court Swabi, which was decreed in his favour; that the decree was transferred to District Court, Islamabad; that the judgment debtors did not put their appearance before the Executing Court; consequently, moveable assets of judgment debtor were attached in pursuance of the execution proceedings and finally the Court Auctioneer was appointed to conduct the auction of the attached articles. The petitioners participated in the auction proceedings and being highest bidder was declared successful and they deposited 1/4th of the purchase price at the spot to the Court Auctioneer, whereas the remaining amount was deposited in the treasury within seven days of the proceedings and the vehicles under auction were handed over to the petitioners.

3. The respondent No.4 filed objection petition before learned Executing Court, which after hearing the arguments, accepted the same and set aside the auction proceedings vide order dated 30-6-2011. The petitioners aggrieved from the said order, preferred appeal before learned Additional District Judge, Islamabad which was dismissed vide order dated 14-7-2011. Against the said order, the petitioners filed civil revision, which too met the same fate. Hence this petition.

4. Learned counsel for the petitioners vehemently contended that the petitioners have purchased the vehicles/immovable property in auction conducted by the Court Auctioneer, deposited the money in time and the vehicles were handed over to them and that learned Executing Court, Appellate Court and Revisional court have committed error of law by setting aside the sale after they acquired title in respect of the said vehicles.

5. We have taken into consideration arguments advanced by the learned counsel for the petitioners and have carefully examined the available record.

6. Without going into the question whether the vehicles were owned by the respondents/judgment debtors or that the decree holder instead of filing the suit against the firm rightly filed the suit against respondents Nos.1 and 2 as the same was likely to prejudice interest of either of the parties i.e. decree holder/judgment debtors, it appears that the sale notice was published in daily "Ausaf" on 25-5-2011 and on that very date vehicles were auctioned.

7. Order XXI, Rule 68 of the Civil Procedure Code provided that no sale without the consent in writing of the judgment debtors can take place until after expiry of at least 15 days in case of moveable property and 30 days in case of immovable property calculated from the date of which a copy of promulgation has been affixed on the Court house of the Judge ordering the same. The object of the said provision appears to be to provide an opportunity to judgment debtors or any party claming interest in the property to file their objections before the Executing Court and to attract maximum numbers of bidders to participate in the auction to have the best possible price of the property to be auctioned. But in the instant case the property was auctioned on the very day when the notice was published in the newspaper. The non-compliance of the provision of Rule 68, Order XXI is a material irregularity and as such the sale was rightly set aside by the Executing Court.

8. In view of the above, we are of the opinion that the impugned judgment of the High Court is eminently reasonable and proceeds on cogent ground, to which no exception can be taken. The petition is dismissed being without merit and leave to appeal is refused. M.W.A./S-13/SC Petition dismissed.